The Indian Child Welfare Act (ICWA), which was enacted in 1978 in response to the removal of thousands of Native American children from their tribal homes, sought to protect Native American children’s health and welfare while promoting the stability of Indian tribes and families. The law required state agencies to place abused, neglected Native American children in Native American homes that reflect their unique values of Indian culture. However, the law was vulnerable to much interpretation by state agencies and courts; child welfare services had great discretion in determining whether a child’s welfare or health was at risk and oftentimes reached conclusions without fully assessing the tribe’s cultural practices and norms. Therefore, in 2016, the U.S. Department of the Interior issued new regulations to ensure better implementation of the ICWA.
Overview of the Indian Child Welfare Act
Throughout the 1960s and 1970s, state child welfare agencies and local officials removed Native American children at alarmingly high rates by using “alcoholism, poverty, as well as poor housing, lack of modern plumbing and overcrowding as justifications for removing these [children.]” Cheyanna Jaffke, “The ‘Existing Indian Family’ Exception to the Indian Child Welfare Act: The States’ Attempt to Slaughter Tribal Interests in Indian Children,”66 La. L. Rev. 733 (2006). In 1974, for example, “an estimated 25 [%] of all Native American children lived outside of their Native American communities in boarding schools, in foster homes, or with adoptive parents”; and such removals were often based on the testimony of caseworkers who had very little understanding of tribal norms. See Kate Shearer, Comment, “Mutual Misunderstanding: How Better Communication Will Improve the Administration of the Indian Child Welfare Act in Texas,” 15 Tex. Tech. Admin. L.J. 423 (2014).
In response to this disproportionate number of Native American children being removed from their homes, Congress enacted the ICWA in 1978 as a means “to protect the best interests of Indian children”—but also noted “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” 25 U.S.C. §§ 1901 et seq. (2012). Importantly, the ICWA recognized the “alarmingly high percentage of Indian families [that] are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” and “that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” Id. § 1901(3)–(5)
The ICWA gave tribal courts jurisdiction over matters involving the removal of children, matters that were previously left solely to state officials. In addition, the ICWA required state officials to evaluate the cultural norms of the children’s tribe and community in relation to their welfare. Id. §§ 1904, 1915.
Health and Welfare of Native American Children
Poor health conditions on tribal land have been an ongoing and tragic issue for decades. The National Institutes of Health released a report that shows that
the age-adjusted death rate for [Native Americans] exceeds that of the general population by almost 40 percent, with deaths due to diabetes, chronic liver disease and cirrhosis, and accidents occurring at least three times the national rate, and deaths due to tuberculosis, pneumonia and influenza, suicide, homicide, and heart disease also exceeding those of the general population.
Michelle Sarche & Paul Spicer, “Poverty and Health Disparities for American Indian and Alaska Native Children: Current Knowledge and Future Prospect,”Nat’l Ctr. for Biotech. Info. (2008). In a study to assess childhood obesity among American Indian and Alaska Native children, the study revealed that 39 percent of the children are defined as overweight or obese, and they are twice as likely to be overweight and three times as likely to be obese than their white peers. Id.
U.S. Census Bureau statistics reveal that 27 percent of American Indian and Alaska Native families with children live in poverty, whereas 32 percent of those with children younger than 5 years do—rates that are more than double those of the general population and again are even higher in certain tribal communities.
Id. This high level of poverty directly correlates to the low health status of the Native American population, which is particularly alarming in comparison to the health status of non–Native American children:
Native children’s deaths between the ages of 1 and 4 years occur[ring] at nearly three times the rate of children in the general population (0.9 versus 0.35 per 1000 lives); with preventable deaths due to accidents (0.47 per 1000 children; 52% of all deaths) and homicide (0.065 per 1000 children; 8% of all deaths) being the leading causes of death, and exceeding the all-races rates by 3.3 and 2.2 times, respectively.
Prior to the enactment of the ICWA, state agencies relied on poor health and living conditions as grounds to remove children from their tribal homes. Today, the ICWA requires a “causal relationship between the conditions and the serious damage that is likely to result to the child” if the child were to remain on the reservation. Nat’l Indian Child Welfare Ass’n, A Guide to Compliance with the Indian Child Welfare Act.
states that a court may not issue the foster care placement of an Indian child in the absence of a determination—by clear and convincing evidence—supported by the testimony of a qualified expert witness that the child’s continued custody with the child’s parents or Indian Custodian is likely to result in serious emotional or physical damage to the child.
Id. at 6 (emphasis omitted). However, this section provides circumstances in which the ICWA does not apply; thus, those cases would not be subject to such a heightened burden of proof.
Foster Care Placement
The enactment of the ICWA represented government recognition of the tragic effects resulting from the unjust removal of Native American children from their tribal communities. Thus, this new law was met with an expectation that there would be a decrease in the number of Native American children in the foster care system.
However, these children continue to be the most overrepresented group in the child welfare system. The “most recent estimates indicate that, nationally, Native American children are overrepresented in the foster care system at a rate of 2.1.” Caroline M. Turner, “Implementing and Defending the Indian Child Welfare Act Through Revised State Requirements,”49 Colum. J.L. & Soc. Probs. 501, 507 (2016). This means that “the proportion of Native American children in foster care is more than twice as high as the proportion in the general population.” Id. In some states, “Native American children are represented in state foster-care systems at rates as high as 14.8 times their presence in the general population of that state.” “Acting Assistant Secretary Roberts Issues Final Regulations to Strengthen Implementation of the Indian Child Welfare Act, Focusing on Family Unification,” U.S. Dep’t of Interior (June 8, 2016).
Section 1915(b) of the ICWA provides an “order of preference for foster care placement of . . . Indian child[ren],” which requires that the children be placed with a home or institution that reflects their tribal identity. The statute establishes the following order of preference for foster care placement of an Indian child: (1) a member of the Indian child’s extended family; (2) a foster home licensed, approved, or specified by the Indian child’s tribe; (3) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or (4) an institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the Indian child’s needs.
Nevertheless, contrary to the purpose of the ICWA, the majority of Native American children continue to be placed in non–Native American foster homes. See L. Rena Murray, “It’s Like a Set Up to Get Rid of Indians,” Dev. Set (Sept. 8, 2016).
There are several factors that may contribute to the high number of Native American children in the foster care system:
Disproportionate placement of Indian children in state systems can result from a number of factors: “The most critical issues of noncompliance involve (1) lack of regular oversight of ICWA implementation[,] (2) . . . children not being identified early in child welfare proceedings, (3) tribes not receiving early and proper notification of child welfare proceedings involving their member children and families, (4) lack of placement homes that reflect the preferences defined within ICWA, (5) limited training and support for state and private agency staff to develop knowledge and skills in implementing ICWA, and (6) inadequate resources for tribal child welfare agencies to participate and support their state and private agency counterparts.”
Caroline M. Turner, Implementing and Defending the Indian Child Welfare Act Through Revised State Requirements,49 Colum. J.L. & Soc. Probs. 501, 508–09 (2016) (quoting David E. Simmons, Nat’l Indian Child Welfare Ass’n, Improving the Well-Being of American Indian and Alaska Native Children and Families Through State-Level Efforts to Improve Indian Child Welfare Act Compliance 7 (Sept. 2014)). These factors reflect the lack of ICWA enforcement by state agencies and officials.
Furthermore, some courts have declined to apply the ICWA under the judicially created “existing Indian family exception,” which occurs “when either the child or the child’s parents have not maintained a significant social, cultural, or political relationship with his or her tribe.” See Cheyanna Jaffke, Judicial Indifference: Why Does the “Existing Indian Family” Exception to the Indian Child Welfare Act Continue to Endure?, 38 W. St. U. L. Rev. 127 (2011). Critics of this judicial exception argue that this is the government’s latest “attempt to force American Indians into modern society.” Id.
Overall, there also is a lack of understanding of what the ICWA is meant to do first and foremost, which is, according to most state courts, preserve Indian tribes and families. Kate Shearer, Comment, “Mutual Misunderstanding: How Better Communication Will Improve the Administration of the Indian Child Welfare Act in Texas,” 15 Tex. Tech. Admin. L.J. 423, 434 (2014).
Challenges Against the ICWA
The inconsistent enforcement of the ICWA has led to a number of claims regarding the statute. Many center around the constitutionality of the ICWA itself. In 2015, several constitutional claims were filed in federal district courts challenging the unequal treatment of Native American children on the basis of their race and arguing that state court and agency enforcement of the ICWA is outside the scope of statutory authority. Several of these cases regarding inconsistent state enforcement and interpretation are pending.
Furthermore, on January 9, 2017, the U.S. Supreme Court declined to hear a case involving non–Native American parents seeking to adopt a girl from the Choctaw tribe. The child was placed in foster care while the state worked on a “reunification plan” for the child and her relatives. The child’s relatives and father fought to regain custody of the child, and ultimately the child was taken away from her foster placement to reunify with her family. The Supreme Court’s refusal to hear the case signifies the importance of the “reunification plan” provision of the ICWA and how lower courts may resolve ICWA cases in the future.
U.S. Department of the Interior New Final Regulations
In response to the heavy criticism leveled against the ICWA and its enforcement, the Department of the Interior, on June 8, 2016, issued final regulations to “Strengthen Implementation of the Indian Child Welfare Act, Focusing on Family Unification.” Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10,146 (proposed Feb. 25, 2015). The new regulations provide clearer guidance to state officials and courts about what constitutes proper implementation of the protections of the law. In acknowledging the issue of Native American children still being disproportionately more likely to be removed from their tribal homes than other races, the Department of the Interior stated that the new rule will ensure “that if a Native child has been removed from their home previously, they will have a pathway for reunification with their family.” Id. The core purpose of the new rule is to “support the stability and security of Indian families and tribes by providing a more consistent interpretation of the Indian Child Welfare Act of 1978 (ICWA), regardless of the child welfare worker, judge or state involved.” Id.
The new rule became effective December 5, 2016, and Native Americans and supporters remain hopeful that additional guidance and consistent interpretation of the regulations will lead to proper enforcement of and compliance with the ICWA. The new rule, however, does not speak to how the state agencies will create pathways for reunification if the parents are unable to provide better living conditions for their children.
The rhetoric behind the ICWA was designed to protect the rights of Indian children and families by “safeguard[ing] Native children from undue separation from their families and cultural identity.” Erica Martinson, “New Federal Rule Aims to Help Native Children Remain in Tribal Communities,” Donaldson Adoption Inst. (June 16, 2016). Although the legislative purpose of the ICWA was based on very positive intentions, the judicially created exceptions to the law and great discretionary authority of child welfare services and state courts have only exasperated the issue of Native American children being removed from their tribal homes. However, the final regulations to strengthen and clarify the ICWA show progress in ensuring that the ICWA is consistently implemented and enforced.
The negative impacts of removal are oftentimes ignored or presented as a somewhat trivial effect. The fact that there has been a focus on building larger foster care systems is proof of this. Those state funds and efforts could be focused instead on providing more in-home family preservation services, better housing options, and increased access to health care. By shifting the focus from a disjointed view to a more harmonized view in which cultural identity and welfare are interrelated, the reach of the ICWA and its implementation could potentially stem, and even reverse, the low health status of Native American children. This shift would allow the government to address the problem rather than simply take the Native American children out of the problem itself.
Hanna Kim is a JD candidate (2017) at the Southern Methodist University Dedman School of Law.
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